Rights when boyfriend dies without a will

DEAR BENNY: My mother and her boyfriend lived together for 18 years. He owned the house by himself. He has two surviving adult children. He always told me he wanted my mom to have everything. He did not have a close relationship to his children.

My mother’s boyfriend recently died of a massive heart attack, and did not have a will. His son now shows up and is trying to have my mom evicted from her home and take all the contents. She has all bank statements to show where she has paid taxes, utilities, etc., for the past seven years (when she opened her checking account). Does my mom have any rights to her house and the contents? My mom is 67 years old. --Tonia

DEAR TONIA: You need to consult with an attorney immediately. You advised me in your email that your mother has a lawyer who apparently is not doing anything for your mother. If that’s the case, get another counsel.

From a legal point of view, since your mother’s boyfriend did not have a last will and testament, the laws in your state will control who gets the house. These laws are called “the laws of intestacy” -- meaning that in the absence of a will, the law dictates how the property of the deceased is distributed. Generally speaking, immediate relatives (a wife or children) will inherit.

However, regardless of whether there was a will, in most states his estate has to go through probate. That would give your mother an opportunity to explain to the probate judge the situation. While I doubt that your mother will end up owning the house, the court may (1) allow her to live there the rest of her life; (2) give her plenty of time to move out, and/or (3) allow her to be reimbursed for some of the moneys she spent taking care of the house.

In the District of Columbia where I practice law, there is a concept called “common law marriage.” That means that if man and woman live together for a long period of time and hold themselves out to the public as being married, the court will consider them married. If so, then your mother -- as the wife -- would be entitled to claim under the laws of intestacy.

I know that not too many states accept the “common law marriage,” but your mother should raise this with her attorney.

DEAR BENNY: In your columns, you always use the words “deed of trust” when you are referring to a mortgage. Is there a difference between these two? --Harry

DEAR HARRY: Yes and no. Oversimplified, both are documents that secure a lender in case their borrower goes into default. However, to my knowledge, some jurisdictions (such as Maryland and the District of Columbia) use deeds of trusts and not mortgages.

The basic difference is that when there is a mortgage and the borrower goes into default, the lender must go to court to foreclose on the property. This is known as a “judicial foreclosure.” With a deed of trust, the borrower -- immediately after getting the deed to the property -- deeds the property in trust to a trustee (or trustees) selected by the lender. The deed of trust contains a “power of sale,” giving the trustee the right to foreclose without having to go to court. This is known as a “non-judicial foreclosure.”

Space in this column is not large enough for me to go into an explanation of the mortgage mess that we have in this country. Suffice it to say, there is a company called MERS (Mortgage Electronic Registration Systems) that is a private mortgage registry, allegedly claiming title to hundreds of thousands of mortgages throughout the country. There has been a lot of court cases over whether MERS is the true owner of those mortgages. Some courts have upheld MERS, others have not. Ultimately, the United States Supreme Court will tackle this issue. Stay tuned.

DEAR BENNY: My aunt is 87 years old and her home is paid off. It is worth approximately $290,000. She currently has Alzheimer’s (can’t remember things). The property was put into a living trust to be divided among her five grown children about 10 years ago.

The problem is one of the grown children recently recorded a grant deed signed by my aunt to himself and his wife for the property. They are currently caring for her. The trustee (his brother) never authorized this. She had (I am guessing) a revocable living trust.

What steps should be done to correct ownership back to the trust? Is this some kind of elderly financial abuse?

I have no financial gain or loss in this problem, but I would like to make sure that what she wanted when she was healthy is done. --Mike

DEAR MIKE: I don’t know if this is “elderly financial abuse,” as I suspect that the persons who now claim ownership thought they were entitled to the house because they are caring for your aunt.

However, one or more of the trust’s beneficiaries should immediately consult an attorney versed in estate and real estate law. I don’t think you should be involved, since you are not a beneficiary and do not have what we lawyers call “standing” -- i.e., the authority to move forward on this issue.

The lawyer will get a copy of the deed that allegedly was signed by your aunt. The bottom line is that the trustee must sign any deed for property in a trust. The lawyer will also want to review a copy of the trust. If, for example, the trust was revocable, and your aunt did, in fact revoke it, then the transaction may be valid. However, if these documents were signed when your aunt was not competent (such as based on her Alzheimer’s condition) -- and a doctor is prepared to certify that when the documents were signed she was not competent to enter into any such transactions, then the deed can be set aside.

However, before engaging legal counsel, I recommend that all of the remaining beneficiaries talk to the two people who claim ownership. Get some facts as to what was done. Perhaps -- especially if threatened with litigation -- they will return the property to the trust.

One note of caution: Many people create trusts but do not formally transfer their property into the trust. If that is the case, then the trust has no application to the property ownership.

DEAR BENNY: My neighbor has a Bradford pear tree that is probably about 15 years old. The other night during the heavy wind a branch of the tree broke off, exposing the trunk. I advised my neighbor to take down the tree because it will continue to drop branches and die. He was not going to do that. Now the heavier branches are leaning towards my property. I would like the name of the law that addresses encroaching tree branches so I can advise him that the tree will be his responsibility if it falls on my property. --Lisa

DEAR LISA: Unfortunately, the answer depends on where you live. Although “tree law” is evolving throughout this country, there are two different approaches that states have adopted.

First, there is the “Massachusetts rule.” This states that while you have the absolute right to cut roots (or trim branches) that overhang or encroach on your property, the tree owner has no liability should the tree cause damage to a neighbor’s property.

Second, there is the “Hawaii rule.” Back in 1981, the high court in that state held that “when trees cause actual harm or pose an imminent danger of actual harm to adjoining property,” the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots. And if this is not done within a reasonable period of time, the neighbor “may cause the cutback to be done at the tree owner’s expense.”

However, to my knowledge, in every state, a neighbor has the absolute right to trim overhanging branches and cut roots that encroach on their property. The neighbor cannot, however, trespass onto the next-door property nor demand reimbursement for such actions.

I had a similar case several years ago. The tree on my client’s neighbor’s land was dropping large walnuts on my client’s backyard, and the tree’s roots were damaging my client’s garage. I filed a lawsuit against the neighbor, claiming that the tree was a private nuisance. We settled in court, because the judge was sympathetic to my position.

Your attorney should tell you which rule applies in your state. But at the very least, the attorney should send a strong letter to the neighbor (by certified mail, return receipt requested and by regular mail) advising him of the problem and putting him on notice should there be damage or injury to your person or property.

One other suggestion: Arrange to have a certified arborist inspect the tree (he cannot enter the neighbor’s property) and if it is determined that the tree is not healthy, a copy of that report should be included at an attachment to the attorney’s letter.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

Copyright 2011 Benny L. Kass

Distributed by Inman News

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DEAR BENNY: Where can a person find the value of a home on a particular date? My last surviving parent passed away on Sept. 29, 2005, and my brother and I sold her house (as heirs) in December for $75,000. Each of us received a check for less than $31,000, due to tax escrow, commission concessions for electrical work, etc. This was not including out-of-pocket expenses such as a new roof, tuckpointing, and the list goes on.

Our real estate person says at one time she was able to provide such information, but not anymore. We did receive comps from her and a verbal assessment that the house was valued at about $110,000 upon my mother’s death. I have checked Internet sites such as Zillow and can get a range, but no specifics. If you could direct us, I would appreciate it. --Gerri

DEAR GERRI: That’s an excellent question, but let me explain why you need this information before I give you an answer. The stepped-up basis is back as of this year (2011). That means that the value of the property on the date a person dies becomes the tax basis for their heirs. So if your dad bought the house for $50,000 and sold it for $75,000, he would have a gain of $25,000. But if the property was worth $75,000 when he died, your basis for tax would be that amount, and if you sold it for that price, you would have no gain -- and thus would not have to pay any capital gains tax.

So, the question is: Where and how can you find the value of the property on the date of death -- especially since so many years have gone by?

The IRS will in most cases accept the tax assessment that the county uses to determine the real estate tax. You should be able to find the assessment from the county where the property is located, either online (some jurisdictions have this information going back several years) or directly from the county tax office.

That’s the best way. You can also hire an appraiser who should be able to assist. Good appraisers know how to determine market value.

Finally, if all else fails, you can rely on the information provided by your real estate agent.

DEAR BENNY: Some years ago I read an article stating that homes in a 55-and-over development should get a reduction in home insurance. Is this true? If so, how do I convince my insurance company? --Ray

DEAR RAY: I don’t know that much about insurance, but have not heard about this. I do know that insurance companies give discounts for such things as smoke detectors, good track record, or having other insurance coverage with the same company (such as auto and home). But I just don’t know the answer to your question. Perhaps my readers can assist.

DEAR BENNY: I want to pay extra on my principal. I remember you saying not to pay it with your regular payment. But I don’t remember what you said to do. I don’t just want to send it without any other paperwork. Should I call the company? I think they will just tell me to send it with my regular payment. --Judi

DEAR JUDI: If you can afford to make extra payments on your mortgage, your loan will be reduced faster, and you will end up paying a lot less interest.

I did not say not to pay it with your regular payment. What I said was to write on the bottom of your check “xxx$ extra principal payment.” Also, all mortgage lenders have some form of voucher that you have to send in with your monthly payment. There will be a line for “extra payment,” so fill it in.

If you are making your payments automatically through your bank, you should advise your lender -- in writing -- that you are making extra payments.

But, regardless of how you do this, at the end of each year, confirm by reviewing your mortgage balance that your extra payments have, in fact, been credited toward your loan.

DEAR BENNY: My husband passed away recently. I need to know what to do and where to go to have his name taken off the title to our house. It is in both our names and he left a will stating everything goes to me. Can I do this myself, as money is pretty short now? --Marcia

DEAR MARCIA: First, you state that the property was titled in both your names. I need to know exactly how title was held. There are three ways: (1) tenants by the entirety -- this is reserved for husband and wife. When one spouse dies, the survivor is the owner and no probate is required; (2) joint tenants with rights of survivorship -- while this can be used by husband and wife, usually it is used by nonmarried people. Again, when one of the owners die, the survivor becomes the owner (by operation of law) and probate is not necessary; (3) tenants in common -- if this is how title was held, on the death of one person, his/her interest goes by way of a last will and testament, and usually probate is required.

Most husbands and wives hold title as tenants by the entirety, so my answer is based on that assumption. As indicated, when your husband died, the property automatically went into your name.

I understand you would like to take his name off of the title, but it really is not necessary. Should you ever want to sell, so long as (1) title was in tenants by the entirety -- which can be determined by looking at the land records, and (2) you have a death certificate showing that your husband died, you will not have a problem selling. You are now the full owner of the property.

But if it is important for any reason to put title in your own name, all you have to do is go down to the office of the recorder of deeds and show him/her the death certificate. From my experience, most recorders of deeds will assist you.

DEAR BENNY: My brother and I inherited our mother’s house when she passed away in January. We wanted to fix it up so we could rent it out. We were hoping to keep it and pass it on ourselves. We need approximately $50,000 to get it ready for rental.

Neither of us could ever qualify for a loan on our own. I thought because the house is paid in full, with no mortgage, we would easily get a loan based on the equity in the house. Also, the house was purchased in the 1950s and has incredibly low taxes. Doing research, I am being told that is not true. What options do we have to find the money for the remodeling? --Diedre

DEAR DIEDRE: In the good old days, because you have a house with no outstanding mortgage, you would not have had a problem getting a loan of at least 50 percent of the appraised value.

But times have changed. Lenders are scared, and are now very conservative.

No one really knows what lenders are willing to lend. However, all I can do is suggest that you shop around for a mortgage. I can’t believe that some lender will find your transaction favorable. While I am not recommending this, there are what are called “hard money lenders” -- lenders who take greater risks but with higher mortgage interest rates. If all else fails, you can consider such a lender.

DEAR BENNY: In connection with getting an appraisal for a house, you discussed the “three appraisal” method. You wrote: “If the appraiser’s values are far apart, the two parties together hire a third appraiser whose decision will be final.”

This makes sense to me if the third appraisal is between the first two, which are more than 10 percent apart.

But, what if the third appraisal is outside of either of the range of the first two? To say that this outlier appraisal was final seems questionable to me.

I may use this recommendation in a sibling situation with my sister for our mother’s home. Can you please clarify? --Jim

DEAR JIM: Appraisal is not a science, but perhaps an educated art. If the third appraisal is so out of line, you could arrange that the appraisals are all added together, and then divided in three. That would be the number.

However, while your situation could happen, my experience is that competent appraisers will come in fairly close to a market value. But if you want to cover this contingency, have your agreement spell out that if that third appraisal is too high, you will take the average of all three.